Summary of National Council Town Hall Meeting, December 7, 2007

Introduction by Charles Ingoglia, Vice President, Public Policy

On today’s call, I’ll attempt to provide a summary of the Interim Final Regulations on Case Management in Medicaid that the Centers for Medicare and Medicaid Services (CMS) released Tuesday, December 4 in the Federal Register. You may remember that the Deficit Reduction Act  (DRA) provided legislative changes to case management and targeted case management, and these interim regulations reflect, and in some instances go further than, the legislative intent of the DRA. These newly released regulations are expected to save $1.28 billion over 5 years. In our initial read, this savings seems to come from the inability of certain Medicaid eligible individuals to access case management. The interim final rule was published Tuesday, December 4 – there is a 60-day window to submit comments to CMS, and the final date to submit comments is February 4, 2008. The National Council, as we did with the rehab regulations, will prepare draft comments for you to submit/use. As this rule is an interim final rule, it will go into effect March 3, 2008, and states will need to make changes to their state plans to be in compliance.

I want to begin by reading a sentence in the preamble as it sets the tone. “Case management is commonly understood to be an activity that assists individuals in gaining access to necessary care and services appropriate to their needs …In the context of this regulation, it is the individual’s access to care and services that is the subject of this management—not the individual.” As indicated in the summary we sent out on Monday, I think there are some major changes that we want to highlight.

• One of the clear things from the rule is that Medicaid beneficiaries can only have one case manager and one case management plan – we know that this has frequently been a goal, but going forward will be a requirement and states will have to submit a state plan amendment to CMS on how they’ll ensure that all beneficiaries have only one case manager and plan.

• One of the more onerous points is that CMS clarified that there will be no bundling or day rates for case management – case management must be billed in increments of 15 minutes or less. I think this will have a potentially big effect on our system.

• Case management cannot be a required service and case managers cannot be gatekeepers to other services.

• CMS has also clarified that case management must be limited to the activities listed in the DRA: 
  
  Assessment and reassessment of an eligible individual to determine service needs (this includes client history and gathering information from other sources-such as medical providers, family members, social workers-to form a complete assessment of the individual);
  
  Development and periodic revision of a specific care plan based on the information collected through assessment and reassessment (this includes referral and related activities to help a client obtain needed services-such as linking individuals to medical, social, or educational providers-and monitoring and follow-up activities to ensure that the care plan is effectively implemented and adequately addresses the needs of the client). 
  
  Case management does not include the provision of any underlying social, medical or education activity.  Any clinical service provided by case managers cannot be reimbursed as case management, though could be billed under some other Medicaid option, as we’ll discuss later on.

Section 440.1169 discusses case management and/or Targeted Case Management (TCM) provided to individuals transitioning from institutions and into community. Curious in the wake of the Olmstead decision– CMS lays out a series of conditions under which it will reimburse case management/TCM provided to individuals transitioning out of inpatient care. The regulation described two different scenarios related to case management provided to persons residing in institutions - a) one for people who’ve been in for more than 180 days – they can only receive case mgt the last 60 days of their inpatient stay and b) for less than 180 days – can only receive case mgt in the last 14 days of their placement. Since case management is primarily a community benefit, three additional criteria must be met:

1. The person is discharged from the institution,

2. The individual is enrolled in, and 

3. Receiving services in a community setting – only then case management services provided while the individual was in an institution can be reimbursed – on a retroactive basis.

The Interim Final Rule also clarifies that case managers are expected to provide comprehensive assessments to beneficiaries that address all areas of needs, individual’s preferences, and must be updated once a year. The rule states that ancillary services like transporting an individual to a service, or providing child care to allow individual to participate in services will no longer be reimbursable.

The requirement for one case manager and one plan will require states to file a new State Plan Amendment to be in compliance with these new requirements. States will either have one or two years to do this – and the time frame is tied to the state legislative cycle.

The rule states that all Medicaid services need to be voluntary—case management services can never be compulsory. States can’t force individuals to be in case management to receive additional services and will have to explain how individuals can exempt themselves/choose whatever provider they want. Only exception is for individuals with developmental disabilities/mental illness as named in a “target” group – states can limit the number of providers who can provide case management to these populations.

Case management does not include the actual direct services individuals receive – if case managers do provide services like counseling, will need to be billed separately. Such a service may be reimbursable as a Rehabilitation service, for example, if the service meets coverage requirements in other Medicaid options, like rehabilitation, that the state plan allows it, that the client is eligible to receive it, that the provider is qualified and not making self-referrals. If we think back to rehab regulations released in August, also outlined requirements for rehab to be reimbursable – would need to meet all of these documentation requirements.

The rule lays out a series of documentation requirements for case mgt – there are 8 elements that we describe  in our summary. Similar to what we saw in rehab, CMS says case management reimbursement will not be available for administrative activities of any other program – case management cannot be provided by workers in any other systems – child welfare, etc. This notion seems to go beyond the legislation, particularly for children in child welfare and will be part of our comments.

That’s a quick summary of the proposed rule. Just a reminder that the comment period will expire February 4, 2008. At least two weeks prior, the National Council will make draft comments available for your use. Reminder that as an interim final rule, this will go into effect March 3, 2008.

We’re seeking to stop these regulations from being implemented—strategy would be similar to other Medicaid regulations, asking Congress to impose a moratorium. Think those of you reading popular press realize the number of vehicles currently moving in Congress is limited, making adding a moratorium for these new regulations onto something challenging.

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Summary of Question & Answer Session (organized by general topic)

Clarification on Role of Case Manager

• One listener expressed concerns about what appears to be a move away from being able to provide case management services on an on-going basis and wanted to know whether this Interim Final Rule would prevent on-going case management. 
  
  On-going case management is allowed as long as it is billed in 15 minute increments as described in the regulation.
• Listeners asked whether monitoring and follow-up are allowable services under this new definition of case management and also inquired about reimbursement for helping clients access other services systems (e.g. food stamps, Low-Income Home Energy Assistance Program).
  
  Monitoring and follow-up services are allowed as long as they have been included in the case management plan that has already been written. 
  
  Although the regulation does not go into detail about other service systems, in general, helping clients access other service systems will be reimbursed through Medicaid.
• Listeners also sought clarification between the idea of “case management” and the term “targeted case management” (TCM) and what services are impacted by this regulation.
  
  TCM allows states to target case management services to certain populations or areas of the state. This regulation applies to all case management services reimbursed by Medicaid. It is also important to note that this rule does not apply to services provided through a waiver (such as a Mental Retardation Waiver). 
• One listener asked whether “case manager” is defined in the regulation as an individual or an agency. 
  
  Charles Ingoglia believes that the regulation uses the term ‘case manager’ to mean an individual, not an agency. 

State Plan Amendment (SPA) Development

• A listener asked whether providers need to change their billing behaviors in anticipation of a SPA and another listener inquired as to what occurs during the period in which states develop their SPAs.
  
  In response, Ingoglia commented that first the SPA needs to be submitted to the Centers for Medicare and Medicaid Services (CMS).  Through the SPA, specific billing requirements will be clarified (e.g. services provided in under 15 minutes billed in 15 minute increments or real time).
  
  Additionally, Ingoglia hopes that through the SPA development process, states will collaborate with providers and other stakeholders to discuss implementation issues. 

TCM and Rehab Option

• Several listeners commented that in their facilities and/or states, case management is billed under rehabilitation or case management services are intertwined with services billed under the rehab option.  Also, some facilities use Assertive Community Treatment (ACT) billed under the rehab option.  How does the TCM Interim Final Rule impact this?
  
  The interim final rule refers to all case management services reimbursed through Medicaid.  So, it would be beneficial for states to clarify what case management services are provided through the rehab option as opposed to case management. In regards to ACT, we are aware that this is a complicated issue for providers, especially because many are unaware of how services are billed (rehab service vs. case management service).  Perhaps this requires that service definitions are changed and clarified, but CMS will expect a very detailed description of allowable services and providers.  This is something we will have to think about more in the future.

Liability and Risk of Audit

• Several listeners were concerned about the possibility of the definition of case management returning to how it was defined in January 2006.  More specifically, listeners were concerned that this will place them at increased risk of audit because they have exceeded this old definition in the past two years.
  
  As the Deficit Reduction Act came out in February of 2006, the case management provisions were retroactive to January 1, 2006.  Although the National Council pushed to have these regulations published as a Proposed Rule, they were published as an Interim Final Rule. As a result, it could be applied retroactively.
• Additionally, some listeners mentioned state laws or court orders that require that certain populations have a case manager (e.g. anyone in the community, specific populations within the community) despite the fact that clients frequently do not want to access these services. Listeners were concerned that this leaves them open to audit or liability.
  
  It is difficult to assess this at the national level. Speak to an attorney in your state-they should be able to give you advice on this issue.

Comments to CMS

• A few listeners asked about the commenting process and whether comments will have an impact. 
  
  Although it is in our best interest to provide comments, their impact will not be as great because we are commenting on an Interim Final Rule. In comparison, for a proposed rule, comments have a strong impact.  For example, during the comment period for the Rehab Option regulations, CMS received 1300 electronic comments and four boxes of paper comments—they had to respond to all of them. 
• Some listeners also asked whether we would be including specific items (such as bundling of services) in the National Council’s comments to CMS.
  
  There has been an obvious trend in which CMS is overturning policies from the 1990s in exchange for fee-for-service.  So, although we can include items such as the bundling of services and the evidence base supporting it, it may not have the impact one might hope for.